H. B. 4113


(By Delegates Evans and Border)

[Introduced January 22, 2002; referred to the

Committee on the Judiciary.]





A BILL to amend and reenact sections thirty-nine and thirty-nine-a, article three, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to increasing criminal penalties for issuing worthless checks.

Be it enacted by the Legislature of West Virginia:
That sections thirty-nine and thirty-nine-a, article three, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-39. Obtaining property in return for worthless check; penalty.

It is unlawful for any person, firm or corporation to obtain any money, services, goods or other property or thing of value by means of a check, draft or order for the payment of money or its equivalent upon any bank or other depository, knowing at the time of the making, drawing, issuing, uttering or delivering of the check, draft or order that there is not sufficient funds on deposit in or credit with such the bank or other depository with which to pay the same upon presentation. The making, drawing, issuing, uttering or delivery of any such check, draft or order, for or on behalf of any corporation, or its name, by any officer or agent of such the corporation, shall subject such the officer or agent to the penalties of this section to the same extent as though such the check, draft or order was his or her own personal act, when such any agent or officer knows that such the corporation does not have sufficient funds on deposit in or credit with such a bank or depository from which such the check, draft or order can legally be paid upon presentment.
This section shall does not apply to any such check, draft or order when the payee or holder knows or has been expressly notified prior to the acceptance of same or has reason to believe that the drawer did not have on deposit or to his or her credit with the drawee sufficient funds to insure payment as aforesaid, nor shall this section apply to any postdated check, draft or order.
No prosecution shall be confined to the provisions of this section by virtue of the fact that worthless checks, drafts or orders may be employed in the commission of some other criminal act.
A person who violates the provisions of this section, if the amount of the check, draft or order is less than five hundred dollars, is guilty of a misdemeanor and, upon conviction thereof, the person shall be fined not more than two three hundred dollars, or confined in the county or regional jail not more than six months one year, or both. A person who violates the provisions of this section, if the amount of the check, draft or order is five hundred dollars or more, is guilty of a felony and, upon conviction thereof, the person shall be fined not more than five hundred one thousand dollars, or imprisoned in the penitentiary a correctional facility not less than one year two years nor more than ten years, or both.
 §61-3-39a. Making, issuing, etc., worthless checks; penalty.
(a) It is unlawful for any person, firm or corporation to make, draw, issue, utter or deliver any check, draft or order for the payment of money or its equivalent upon any bank or other depository, knowing or having reason to know there is not sufficient funds on deposit in or credit with the bank or other depository with which to pay the check, draft or order upon presentation. The making, drawing, issuing, uttering or delivering of any check, draft or order, for or on behalf of any corporation, or its name, by any officer or agent of the corporation, shall subject the officer or agent to the penalty of this section to the same extent as though the check, draft or order was his or her own personal act.
(b) This section shall does not apply to any such check, draft or order when the payee or holder knows or has been expressly notified prior to the acceptance of same or has reason to believe that the drawer did not have on deposit or to his or her credit with the drawee sufficient funds to insure payment as aforesaid, nor shall this section apply to any postdated check, draft or order. This section shall does not apply when the insufficiency of funds or credit is caused by any adjustment to the drawer's account by the bank or other depository without notice to the drawer or is caused by the dishonoring of any check, draft or order deposited in the account unless there is knowledge or reason to believe that the check, draft or order would be dishonored.
(c) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than two three hundred dollars; and upon a third or subsequent conviction thereof, shall be fined not more than two five hundred dollars, or confined in the county or regional jail not more than ten thirty days, or both.
NOTE: The purpose of this bill is to increase the criminal penalties for issuing worthless checks.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.